Whether you live in a small apartment or a grand estate you likely consider your home to be your private retreat – the one place where the troubles and turmoil of life cannot reach you. Or can they? What happens if the police show up at your door demanding to search your home? For most people this would be a frightening experience; however, it happens far more often than you may realize. You may be the epitome of the “law abiding citizen” yet still be the subject of a home search by law enforcement officers for one reason or another. Unless you have reason to anticipate the search of your home you would likely not know how to respond should the police show up asking to conduct a search. For this very reason it is important to understand the basics of search and seizure law because the reality is that the police could pound on your door at any time and for a wide variety of reasons.
Federal and State Search and Seizure Law
As citizens of the United States of America we all have a number of important rights that are guaranteed to us in the U.S. Constitution and subsequent Amendments. Most of the most important rights are found in the first ten Amendments, collectively known as the “Bill of Rights”. At the time the Bill of Rights was created, the right to be secure in your home was of paramount importance given what was then recent history with the British. To ensure that people would feel safe in their homes, the Fourth Amendment was included in the Bill of Rights which reads:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In the United States we operate under what is referred to as a “federalist” form of government. In short, this means that power and authority is shared between a central government and smaller state governments. Therefore, each state (or commonwealth) also has its own Constitution or similar document that governs the state. Like most other states, the Constitution of the Commonwealth of Massachusetts has a provision that mirrors the Fourth Amendment to the U.S. Constitution. Article XIV reads:
“Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.”
Consider the Fourth Amendment and Article XIV to be the starting point for a discussion regarding your right against illegal search and seizure. Both make it illegal for a law enforcement officer to search your home without first obtaining a warrant that is supported by probable cause. While this sounds simple and clear, the Supreme Court of the United States, or SCOTUS, has slowly chipped away at the protection afforded by the Fourth Amendment over the years, meaning there are now a number of important exceptions to the warrant requirement.
Obtaining a Warrant
Although exceptions now exist to the warrant requirement, law enforcement officers will usually still try and obtain a warrant before searching a home when possible to reduce the chance that evidence found during the search is excluded down the road. In the normal course of events, an officer must first have “probable cause” to request a warrant. As you may imagine, the definition of probable cause has been argued and debated since the concept was introduced over 200 years ago. One common definition is “information sufficient to warrant a prudent person’s belief that evidence of a crime or contraband would be found in a search”. To obtain a warrant to search a private home a law enforcement officer typically fills out a Probable cause affidavit setting forth the reason why the officer believes that probable cause exists. The officer must sign and affidavit under oath and then deliver it to a judge or magistrate. The judge then reviews the affidavit and signs it or sends it back to the officer if insufficient information exists for probable cause. If the warrant is signed, the officer then proceeds to arrange the search.
The wording used in the warrant is just as important as the warrant itself because the law only allows the police to search the location indicated in the warrant and limits the scope of the search to where items listed in the warrant could be located. For instance, if the warrant was procured on the basis of probable cause to believe that stolen automobiles will be found on the premises the police cannot also search the bathroom medicine cabinet because there will clearly not be an automobile in there.
Exceptions to the Warrant Requirement
Over the years our rights with regard to searches and seizures have slowly disappeared. SCOTUS has found, for example, that our privacy rights evaporate when we choose to operate a motor vehicle on a public roadway. Furthermore, a police officer may conduct a “pat down” search of your person for “officer safety”. Your right to remain secure in your home, however, remains relatively intact, subject to a few notable exceptions. The police are not required to obtain a warrant under the following circumstances:
- Consent – this one is simple. If you give the police consent to search your home (or car, garage, person) then a warrant is not required. Knowing this, law enforcement officer will use a variety of tactics to try and get you to consent to a search of your home. A common approach is to tell you they can get a warrant but by consenting you can save everyone time and trouble. Often, the truth is that they do not have the probable cause needed to get a warrant or they would have already done so; however, they are hoping you will provide consent anyway. Do not allow the police to coerce you into consenting to a search. You have a right to refuse consent and you have a right to consult with an attorney if you are asked to consent.
- Incident to Arrest – in some cases a law enforcement office has the legal authority to enter your home to arrest someone. This is usually the result of a felony arrest warrant. In this case, the officer is allowed to search the area “under the immediate control” of the arrestee for contraband or weapons. This exception, however, is limited in scope to the area right around the arrestee.
- Exigent Circumstances – if an officer has probable cause and exigent circumstances are present an officer may enter and search your home without first obtaining a warrant. An exigent circumstance is one in which a law enforcement officer has a reasonable belief that action needs to be taken but he/she does not have the time required to obtain a warrant first. Screams of help from inside the home are a common example of a situation where the exigent circumstances exception applies.
- • Plain View – the plain view exception is used anytime an officer has a legal right to be in your home. For example, if an officer is serving a warrant, conducting a probation “check”, or you have invited the officer in for any reason. Once legally in your home, anything in plain view can be seized. Imagine, for instance, that a police officer knocks on your door and tells you a crime was committed in the neighborhood and asks if you have a few minutes to answer to general information questions. Without thinking, you agree and the officer comes inside. On the living room table is a pipe used to smoke marijuana. Because the pipe is in plain view, and may be considered paraphernalia, the officer can seize the pipe and could charge you with possession of paraphernalia.
Evidence Obtained from an Illegal Search – The Exclusionary Rule and Fruit of the Poisonous Tree
Despite the fact that your home remains fairly well protected in the eyes of the law from an illegal search and seizure, illegal searches and seizures do still occur. So what happens to evidence obtained in an illegal search? The “exclusionary rule” applies in a situation where a search was conducted and is later determined to have violated your right against illegal searches and seizures. In essence, the exclusionary rule prevents the Commonwealth of Massachusetts (or the United States in a federal prosecution) from using evidence obtained in an illegal search against you in a subsequent prosecution.
An extension of the exclusionary rule is known as the “fruit of the poisonous tree” doctrine. This prevents evidence from being admitted at trial that, but for an illegal search, would never have been found. By way of illustration, imagine that the police conduct an illegal search of your friend’s home. During that search they locate records that indicate your friend was purchasing illegal drugs from you. That information alone is used to get a warrant to search your home where upon they uncover a quantity of cocaine. The cocaine could be excluded based on the fact that the cocaine would not have been discovered but for the records found at the friend’s house. The search of the friend’s home, however, was illegal, therefore making the cocaine “fruit of the poisonous tree”. Not surprisingly, there are a number of exceptions to the exclusionary rule and the fruit of the poisonous tree doctrine, meaning only an experienced Massachusetts criminal defense attorney can provide you with an accurate opinion as to the admissibility of evidence obtained in a search of your home.
Your home remains relatively secure from unwarranted search and seizure; however, the search and seizure laws are complicated and complex. Whether a search violated your rights or not depends on the unique set of facts and circumstances surrounding the search. If you believe that the police violated your rights, consult with an experienced Massachusetts criminal defense attorney immediately.
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